Monday, 10 May 2010

Chutzpah [updated]

Roy Lichtenstein creates pop art heavily derivative of panels of graphic novels. As best I'm aware, he didn't pay royalties to anyone whose work he used.

A band buys a piece of art from an artist who, as part of an art class, painted another piece of work derivative of the same comic book panel as the one used by Lichtenstein; they use this as an album cover

"The closer my work is to the original, the more threatening and critical the content. However, my work is entirely transformed in that my purpose and perception are entirely different. I think my paintings are critically transformed, but it would be difficult to prove it by any rational line of argument"

After visiting a Lichtenstein exhibition in Chicago, attorney Mark Weissburg wrote an article titled ``Roy Lichtenstein, Copyright Thief?" ``I was struck by the fact that Lichtenstein was never sued for copyright infringement," Weissburg wrote. ``Under copyright law if you copy a protected work without permission you are breaking the law . . . . The Copyright Act also prohibits what are called `derivative works.' These are works that play off of or incorporate or embellish another work. Virtually every one of Lichtenstein's paintings was either an out and out copy or at least a derivative work."

Intellectual property attorney Stacy Friends agrees. ``It is just like sampling, and this is considered `stealing , ' " she says. ``The question to be asked is why people who clearly had a right to sue chose not to. In the time period that we are talking about, there might have been some historic leeway for fine art." It is possible that a copyright holder did threaten to sue, and instead reached a private settlement, she speculates. It is now a moot point. The statute of limitations for copyright infringement is three years.

Comic book companies owned the original copyrights. DC Comics declined to comment for this article. Russ Heath, a DC artist whose work Lichtenstein used, says the publisher was never interested in suing Lichtenstein, probably because there wasn't much money to be made. ``He never even had me over for a cocktail, and then he died. So I guess I'm out of luck."

Ninety-year-old artist George Tuska couldn't come to the phone, but his wife, Dorothy, says they had no idea that a 1961 Buck Rogers panel drawn by her husband became ``Emeralds," a valuable Lichtenstein canvas. ``Oh my God," she says. ``That is unbelievable." Sotheby's sold ``Emeralds" to an anonymous buyer for $1.6 million in 1999.

One artist whose work Lichtenstein appropriated, Joe Kubert , says he doesn't care. ``My focus is on what is happening today." As it happens, the Lichtenstein Foundation uses an exact copy of a Kubert picture of a fierce dog, titled ``Grrrrrrrrrrr!!" to illustrate a warning to copyright violators on its website. Grrrrr indeed.

``Nobody seemed to raise this issue way back when," says the Foundation's Cowart. ``This wasn't supposed to be about exploiting the exploited. We are all in favor of having the drawers and writers receive as much credit as humanly possible. We owe them esteem but can't pay them back for the royalties they might have received."

Can't pay the prior artists back royalties, but can send chilling copyright notices to the folks going forward. Copyright is broken and Roy Lichtenstein's estate is shameless.

Now, I'd agree with Lichtenstein that moving the art from a comic book page to canvas IS transformative. But surely then too would be taking a Lichtenstein piece and transforming it for use a handbag, on a bumper sticker, or on an album cover.

I actually kinda like Lichtenstein...his pieces are at least fun. And his house at the DC sculpture garden is very fun: you can spend a good while circling the thing seeing how it plays with perspective.

What the case says about copyright law is that the owners of existing content will always push for a maximalist interpretation of the strength of copyright, with no regard to how that affects the cost of creating new works. And, that we do poorly in setting copyright law if we make it consistent with the wishes of existing content owners rather than the broader interest that includes those creating new content.